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Will it be open season for employees on all emails using your system?

May 15, 2014

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

The National Labor Relations Board (NLRB) has decided to re-review the issue of employee use of employer emails for “(union) organizing” purposes.  The NLRB is considering whether employees have a federal right to use employer-owned and maintained email systems for union organizing purposes and to discuss wages, discipline and other protected concerted activity. The effect of this potential change of viewpoint will impact all employers, not just union employers.

In a case that goes back to the George W. Bush administration, an employee used the company’s email to support union organizing at the company.  The NLRB held that the employer can prohibit union solicitation using the employer email system. (Register-Guard, 351 NLRB 50 1110 (2007)).

However, a recent case with similar issues has arisen.   In Purple Communications, Inc. (Cases 21-CA-095151; 21-RC-091531; and 21-RC-091584), the administrative law judge (ALJ), relying on Register Guard, dismissed the allegation that the employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting use of its electronic equipment and email systems for activity unrelated to the employer’s business purposes.  The employee handbook policy at issue was:

Computers, laptops, Internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by Purple to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only. . . . Employees are strictly prohibited from using the computer, Internet ,voicemail and email systems, and other Company equipment in connection with any of the following activities:  . . . 2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company. . . . 5. Sending uninvited email of a personal nature.

In this case, the ALJ believed that the policy was overbroad and should be overturned, but refused to do so. He stated that only the NLRB can overturn the previous Board decision, and he allowed the policy to stand.  As a result of losing at the ALJ level, the NLRB General Counsel appealed and asked the Board to overturn the Register-Guard case and to adopt a policy that employers can only limit email and other electronic communication use to the extent they need to maintain production and discipline.

The NLRB has asked interested parties to provide briefs on the issue of employer prohibitions on solicitation emails by June 13, 2014.  However, it is likely that the NLRB has already made its decision and solicitation of briefs is pre-textual as well as a ruse to give the appearance of an impartial hearing.

As with social media, if the NLRB rules against the employer then email use by employees will be wide open. It will be hard to discipline employees for violations of an email policy because anything written and sent might be considered “concerted” action by employees, regardless of whether there is any intent to organize or not. The NLRB has watered down employer social media policies to such an extent that employees can write just about anything on a social site and see it classified as “concerted” action.

What does “concerted activity” mean?  Concerted activity is any activity by groups of employees who are united in pursuit of a common goal. To find an employee’s activity to be “concerted,” the action must be engaged in, with, or on, the authority of other employees, and not solely by and on behalf of the employee himself. It also must encompass those circumstances where individual employees seek to initiate, induce, or prepare for group action. And it must encompass actions by individual employees bringing truly group complaints to the attention of management.  The NLRB has broadly interpreted the term in recent years.

Non-union employers determined to stay non-union need to be very concerned about this issue. The NLRB has already been ruling on policies of nonunion companies, stretching their jurisdiction well beyond the limits it observed in the past.

ASE will be monitoring this issue closely as a member of the Coalition for a Democratic Workforce. We will keep our members as developments occur.

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